What is bribery?
To bribe someone means to induce behaviour through a gift or advantage. The gift does not have to be monetary; it can include any kind of benefit such as hospitality or a favour. A bribe is sometimes called an “undue reward”.
Not every gift or reward is considered a bribe. Bribery only occurs if such a reward is used to influence a person to act in a way that contravenes laws, is dishonest, or lacks integrity. Examples of bribery include:
- Paying a public official to get an inspection report.
- Paying a customs official to speed up the passage of goods through a port.
- Employing a public official’s son to influence the award of contracts.
- Paying the travel expenses of doctors to convince them to prescribe certain products.
What is corruption?
Corruption is defined by Transparency International as the “abuse of entrusted power for private gain”. Corruption occurs when someone who has been granted official powers, either public or private, exploits them for his or her own benefit. Bribery is one common form of corruption, but it can include other conduct such as embezzlement or extortion.
Corruption and international law
Corruption has devastating global consequences. It erodes trust in the public sector, weakens democracy and slows economic development. It is in the interest of all nations to respond to the threat posed by corruption.
The United Nations Convention against Corruption (UNCAC) is the only binding international treaty dealing with corruption. The UNCAC covers five main issues:
- Preventive measures directed at both the public and private sectors.
- Criminalisation and law enforcement.
- International cooperation.
- Asset recovery aimed at returning assets to their rightful owners.
- Technical assistance and information exchange.
The vast majority of United Nations member states are party to the convention, and Australia ratified the UNCAC in 2003.
Other important anti-bribery Conventions include the Organisation for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. This Convention aims to suppress bribery in the international corporate sphere.
Federal laws against bribery
The federal law in Australian criminalises corrupt conduct both domestically and internationally.
Section 141 of the Criminal Code Act 1995 (Cth) makes it an offence for a person to dishonestly provide, offer, or cause a benefit to another person with the intent to influence a Commonwealth public official in the exercise of the official’s duties.
Under section 141.1(3), it is also an offence if a Commonwealth public official dishonestly asks for, receives, or agrees to receive a benefit for themself or another person, and does so with the intention that the exercise of his or her official duties will be influenced. It is also an offence for a Commonwealth public official to ask for, receive, or agree to receive a benefit with the intention of inducing, fostering, or sustaining a belief that the exercise of the official’s duties will be influenced.
An individual could be liable under this provision for conduct that takes place overseas, so long as it involved a Commonwealth public official.
Section 70 of the Criminal Code Act criminalises the bribery of foreign public officials. It is an offence to:
- Provide, offer, or cause a benefit to be provided to another person,
- Where that benefit is not legitimately due to that person,
- With the intent to influence the exercise of a foreign public official’s duties,
- In order to obtain business or a business advantage.
For individuals, both domestic and foreign bribery carry a maximum penalty of 10 years imprisonment or a $2,200,000 fine.
For corporations, the maximum penalty is a fine not more than the greatest of the following:
- A fine of up to $22,200,000, or
- Three times the value of the benefit (if it can be determined), or
- If the value of the benefit cannot be determined, 10 per cent of the annual turnover of the company during a 12-month period (concluding at the end of the month in which the offending conduct occurred).
NSW laws against bribery
Part 4A of the Crimes Act 1900 (NSW) was designed to deal with corruption in the private sector, but in effect also criminalises a range of bribery offences, both public and private.
Under section 249B it is a crime for an agent to receive or solicit, or for a person to give or offer, any benefit in the following circumstances:
- As an inducement or reward for doing something or showing favour to any person in relation to the agent’s affairs or business, or
- Where the receipt of the benefit would “tend to influence” the agent to show favour to any person in relation to the agent’s affairs or business.
The term “agent” includes but is not limited to:
- Any person employed by or acting on behalf of another person,
- Any person serving under the Crown,
- A police officer, or
- A councillor under the Local Government Act 1993.
Even if the benefit was not offered specifically as an inducement or reward, but would “tend to influence” the agent, the person could still be found guilty. Generally, this is an objective test directed at the intention and not the result.
In both instances, the maximum penalty is seven years imprisonment.
The Crimes Act also contains a range of other offences that are relevant to corruption such as fraud, embezzlement, and perverting the course of justice.
Common law offence of bribery
Bribery is also an offence under common law. It deals with the bribery of public officials, and criminalises the “receiving or offering of an undue reward” to any person in a public office, to:
- Influence that person’s behaviour, and
- Incline that person to act contrary to accepted rules of honesty and integrity.